Our Troubled Constitution

Tim Lee complains that "The general point that violating the constitution is wrong even if it leads to results we like is a position that hardly anyone in mainstream politics takes seriously" and there follows some fulminating about liberals who are "perfectly willing to countenance tortured readings of the First Amendment in the name of 'campaign finance reform,' of the Second Amendment in the name of 'gun control,' and of the Fifth Amendment in the name of 'urban planning.'"

Color me unconvinced. It's easy for a libertarian who's convinced that a non-tortured reading of the constitution would enact libertarianism to assert that the country's vast non-libertarian majority ought to be less concerned about our policy preferences and more concerned about non-torture of the constitution. The reality, though, is that where the constitution is really ambiguity-free then people are happy to abide by provisions they don't approve of. I think, for example, that judicial terms should be long, but fixed, rather than lasting until death or retirement. It's clear enough, though, that that's not the law.

Meanwhile, had the US Constitution not been written by a small and unrepresentative minority of wealthy individuals working in the 18th century, it's possible that it would do something like guarantee a right to health care. Folks on the left would read that as a straightforward constitutional enactment of a universal health care system. More libertarian-minded people, though, could probably devise "tortured" readings of the provision indicating that "after all just go to an emergency room" plus the status quo is good enough:

Meanwhille, from where I sit it's Tim's reading of the Fifth Amendment that seems tortured to me -- why shouldn't urban planning count as a public use? But leaving that aside, I suppose it does take some torturing of the Second Amendment's text to explain why the "right to keep and bear arms" doesn't guarantee people's right to keep and bear, say, weaponized forms of the VX nerve agent but I'd rather offer a tortured reading of the amendment than have deadly neurotoxins sold at the corner store. Obviously, there are some constitutional provisions I think should be very strictly adhered to, but those are just the provisions that I think enact morally worthwhile principles of justice. Maintaining the rule of law requires us to show some fidelity to precedent and to efforts at textual exegesis but whether or not we're "getting the text right" as such pretty little bearing on the issue.

The real problem is simply that the constitution is too hard to amend so that when provisions become outdated or unworkable or produces ludicrous results (VX gas, again) it's unduly difficult to change things around. Meanwhile, undue reverence for the constitution prevents people from recognizing that a lot of the procedural aspects of the constitutional mechanism are clunky and absurd (see for example what happens if there's no majority in the electoral college, a lurking time-bomb that's bound to go off one of these days) and ought to be changed.

Comments

At least you're honest about it.

Posted by JA | November 7, 2007 2:30 PM

I'm sorry, but I just flat-out disagree with the spirit of this post. If you look at those nations that amend their constitutions often, versus those who are very cautious about making amendments, I think you'll find that the former group are almost always less free, less democratic, less prosperous, and less stable than the latter group.

Constitutions are certainly clunky, and they certainly get outdated. But the argument for making constitutions fluid and easily rewritable - basically, that it's expedient - is dangerously close to the classic justification for dictatorship.

I think even a casual reading of history will show that clunky constitutions are "the worst form of government, except for all the others that have been tried from time to time."

Posted by Mr. Noah | November 7, 2007 2:33 PM

I think even a casual reading of history will show that clunky constitutions are "the worst form of government, except for all the others that have been tried from time to time.

Bad quote choice, since England doesn't have a clunky constitution. It has an easily amendable (small "a" there) collection of statutes, judgements and even unwritten proclamations.

Posted by Njorl | November 7, 2007 2:38 PM

A fine post, but I don't think it should be limited to the Constitution. The same would seem to apply to regular, old statutes.

Posted by Al | November 7, 2007 2:42 PM

"had the US Constitution not been written by a small and unrepresentative minority of wealthy individuals working in the 18th century, it's possible that it would do something like guarantee a right to health care"

In other words

"If the Constitution were written by me and everyone who agrees with me, then it's possible then everything I believe in would be in the Constitution."

Posted by Dave | November 7, 2007 2:42 PM

Actually Dave, he's got a point

One thing I picked up from "Radicalism of the American Revolution" is that such a broader based constitution would also have enshrined explicitly Christian worship in the constitution.

It was that "small, unrepresentative minority of wealthy individuals" that was Deist, at best.

I doubt that's something Matt would care for.

Posted by Greg | November 7, 2007 2:47 PM

Matt:

I agree completely with your attitude toward the Constitution. Three cheers for pragmatism.

Posted by blah | November 7, 2007 2:48 PM

That's a wonderful non-answer, Matt. Here's the problem:

-- liberals hate the 2nd amendment, and are willing to gut it
-- everyone hates the 10th amendment, and is willing to give the Feds more power than they can handle
-- conservatives are willing to savage the 4th amendment in pursuit of the "war on drugs"

You simply shrug your shoulders in a "politics is all that matters" way. If there's no respect for the rule of law, why will your preferred laws get any respect?

Posted by James Robertson | November 7, 2007 2:54 PM

Bad quote choice, since England doesn't have a clunky constitution. It has an easily amendable (small "a" there) collection of statutes, judgements and even unwritten proclamations.

Yup. Having a society committed to respecting the rule of law is of primary importance.

To the extent that the consitution's stability actually erodes our respect for the rule of law, it ought to be easier to amend. Just not that much easier.

Posted by southpaw | November 7, 2007 2:57 PM

The Constitution really isn't that hard to amend. Even not counting the Bill of Rights, we've done it 17 times, for such wildly important reasons as establishing term limits to the Presidency or providing silly rules about when Congress can vote itself pay raises.

From 1951 to 1971, we amended the damn thing 5 times.

I think that a healthy tradition of democratically amending the Constitution would be a great thing. It's clearly way more democratic than having a de facto Constitutional amendment created by a Supreme Court decision, and it defends the relevency of the Constitution from people who are inclined to claim things like "the founding fathers 220 years ago had no idea what the modern world would be like and so their document shouldn't be taken seriously."

As my claim to being genuinely interested in the rule of law, I point out that I think that the notion that we have a Constitutional right to privacy is ludicrous, and the SC decisions creating it are patent sophistry. This is not because I don't want a right to privacy: I really do, and would love to see one amended into the Constitution.

Posted by Michael B Sullivan | November 7, 2007 3:02 PM

On the Second Amendment, I'm perfectly willing to be an "originalist"--whatever the founders thought counted as "arms" counts as "arms." If they didn't think of it (and, you know, nerve gas would probably fall int his category), then it's not a constitutionally-protected "arm."

And, yes, I am being snarky.)

Posted by Donald A. Coffin | November 7, 2007 3:04 PM

This discussion reminds me of Randy Barnett's "Restoring the Lost Constitution," a book I read and reviewed for a grad seminar on judicial decision making. His argument is too complicated to recount in a blog comment, so in the spirit of laziness, this is how I concluded my review:

In rendering decisions which reinforce this view, American courts have kept in step with popular perceptions, but not with the natural rights foundations and contractual obligations that accompany the United States Constitution. This is precisely what is most worrisome to Barnett. The advance of equality as a substitute for natural rights tears the heart from the Constitution rendering it meaningless as a binding document. This is offensive to Barnett for he takes contracts quite seriously. He is honest, however. In the final passages of his book he challenges critics of the Constitution to publicly say so. There is no reason why the terms of the contract cannot be renegotiated, after all. Perhaps this is the larger problem. The twin perceptions that the Constitution is both sacrosanct and malleable are difficult to reconcile. It can be argued that the document was designed to resist any change without the formation of super-majorities, a statistical improbability. Thus we are left with a revered document that is resistant to the change in attitudes that have left behind the philosophical core of the 18th century men who enacted it. The pressures created by the new demands of American society have pushed uncomfortably against this rigid concept of natural rights which Barnett is so dedicated to protect, the result being a hollowed-out Constitution which nonetheless provides a meaningful framework for the continuity of American civilization.

Posted by morte | November 7, 2007 3:06 PM

I'm willing to support a broad interpretation of the Second Amendment just as long "arms" includes nuclear arms, grenades, IEDs, land mines, and bazookas also.

Posted by Dan the Man | November 7, 2007 3:07 PM

Bad quote choice, since England doesn't have a clunky constitution. It has an easily amendable (small "a" there) collection of statutes, judgements and even unwritten proclamations.

On the other hand, the Swiss Federal Constitution of 1999 remains effectively continuously amendable via popular initiative, and Switzerland has been a Somali-style anarchy for the last century.

Now, Norway shows the genuinely conservative version in action: a parliamentary election must intervene between proposal of an amendment and voting on it, and the amendment must then be approved by a two-thirds vote of the parliament. Hmm, still a much lower bar than in the US.

The Netherlands combines a Norwegian-style amendment process with a British-style body of unwritten precedents; it also lacks the equivalent of judicial review, so the States-General are technically able to pass unconstitutional legislation.

So, actually, even a fairly cursory perusal of modern democratic societies indicates that the US has an exceptionally difficult amendment process. Therefore, the claim that making the process any easier is a slippery slope to tyranny doesn't really hold water.

As my claim to being genuinely interested in the rule of law, I point out that I think that the notion that we have a Constitutional right to privacy is ludicrous,

Oh, so your genuine interest in the rule of law includes wiping your ass with the Ninth Amendment. Is a right to privacy arguable? Sure. "Ludicrous?" That's the terminology of someone that Madison was thinking of when he feared that enumeration of rights in the Constitution would be used by legalistic dumbfucks to claim that no other rights existed.

Posted by mds | November 7, 2007 3:12 PM

Hey Matt,

The reason urban planning in general shouldn't be construed as a public use is that it becomes an exception that swallows the rule. It's a basic principle of constitutional interpretation that every provision has to have some independent meaning. If "for public use" simply means "for whatever use the legislature deems appropriate," that renders the phrase completely superfluous. Somewhat akin to John Ashcroft's recent argument in the New York Times that AT&T shouldn't be held responsible for sharing customer data as long as the executive branch assured them that it's OK.

For an overview of the practical problems created by the unrestricted use of eminent domain, I refer you to my recent study on eminent domain abuse in Missouri, which has some examples of the illiberal and anti-egalitarian consequences of allowing the unrestricted use of eminent domain. In a nutshell: eminent domain has been used repeatedly to transfer wealth from poor and middle class people to rich people and the politically well-connected.

Posted by Tim Lee | November 7, 2007 3:15 PM

Of course politics influences constitutional decisions, but the wording of the thing itself isn't irrelevant, or something to be worked around. Lee would obtain his preferred policy results were the Constitution read in the most restrictive possible manner, so he has an incentive to regard legal interpretation as some sort of insult or affront.

And the Second Amendment contains a limiting introduction. People who don't like what the first half of the Amendment says call it a "preamble"; they do not explain why it is the only amendment in the Bill of Rights to have a preamble.

Posted by Elvis Elvisberg | November 7, 2007 3:18 PM

Another way of putting Matt's point, I think, is that it's impossible to come up with a coherent account of how to interpret most of the key parts of the constitution (excepting some very specific provisions, like say the 11th amendment or the requirement that the president must be 35 and a natural born citizen) without at some point evaluating whether the result is normatively attractive.

I mean, what on earth are the "privileges and immunities" protected by the Fifth Amendment? What is "due process of law"? "Equal protection"? The "freedom of speech"? Those are all incredibly vague concepts (no less important for their vagueness, but vague nonetheless) that can be cashed out in thousands of different ways. How could we possibly choose among those ways without evaluating which of the answers are normatively desireable?

As Akhil Amar constantly says, we should seek interpretations that are "textually plausible and normatively attractive" (he says something like that).

Posted by JWR | November 7, 2007 3:18 PM

mds: Eh, fine -- I think that the arguments provided by the Supreme Court for the existence of a right to privacy are ludicrous. Is there a natural right to privacy that should be respected? Sure! Like I said, I'm all in favor of a right to privacy. Can you get from there to a Constitutionally protected right just by invoking the 9th Amendment? No, I don't think so.

Posted by Michael B Sullivan | November 7, 2007 3:29 PM

There is a convincing argument by, among others, William Van Alstyne, that the Constitution is indeed too hard to amend (in any momentous way, that is - details of presidential succession and elimination of poll taxes are examples of the relatively uncontroversial spate of amendments in the mid-20th century) -- and that this is true precisely because too many judges, particularly Supreme Court Justices, have viewed themselves, as Matthew would, as being only loosely tethered to the text of the document (whether denying the plain sense of the 2nd Amendment or basing broad conceptions of rights in indeterminate language).

Van Alstyne's argument takes as its foremost example the barely-failed ERA, citing worries by the state legislators that the federal courts would find powers therein far beyond the plain sense of its text.

Even if this is true, I'm not saying you can put the genie back in the bottle...

On a related point: I'm not sure that "show[ing] some fidelity to precedent and to efforts at textual exegesis" is at all what the rule of law is about - especially if it's simply a show.

Posted by Donald | November 7, 2007 3:36 PM

Sullivan -

So it's your position that it is constitutionally permissible for a State to exercise its police powers to prohibit you from having children, or teaching your children a foreign language, or sending them to a private school?

Posted by UN Plaza | November 7, 2007 3:38 PM

Shorter Matt: Matt decides he's smarter than the Founders.

The Second Amendment says nothing about VX nerve gas, you idiot. And as far as I know, neither does the NRA.

Talk about "tortured" interpretations...

This is what you get when you combine a Harvard education with total ignorance and a fat ego.

The Founders spent quite a bit of time working out the Constitution. It's not to be replaced by a fucking blog post by some twenty-something.

New nominee for "Worst Matt Post Ever".

Posted by Richard Steven Hack | November 7, 2007 3:40 PM

Why do conservatives always ignore the "well-regulated Militia" part of the Second Amendment?

Posted by croatoan | November 7, 2007 3:52 PM

One of Matt's better posts. I completely agree with his conclusions:

The real problem is simply that the constitution is too hard to amend so that when provisions become outdated or unworkable or produces ludicrous results (VX gas, again) it's unduly difficult to change things around. Meanwhile, undue reverence for the constitution prevents people from recognizing that a lot of the procedural aspects of the constitutional mechanism are clunky and absurd

The people who claim Amendments are "easy" are wrong. Those that claim it is deliberately extroardinarily difficult to Amend to block changes from the "Perfect Sacred Parchment of the Holy Founders" miss the point, too.

It is old and clunky, and wheezes along by the "inspiration" of an elite judiciary claiming they can divine it by reading between the lines of broken sections or obscure sections to determine what "They the People" wanted fixed in concrete 220 years ago.

The last real substantive Amendment (1962) was elimination of the Poll Tax meant to keep parasites and welfare people away from voting so as to prevent them from raising taxes on the the people, who, unlike them, paid taxes. Donald was wrong, it was quite controversial at the time, but rammed through by the Democrats.

That was 45 years ago.

There are some 20 seriously outdated or flawed parts of the Constitition, according to scholars like Orenstein....but no one can fix them because they are just too much time and effort for small fixes and others killed by individual Senators (that love lifetime judges, Kelo, etc.) or the super-majority voting requirements.

Amending is in complete gridlock.

Posted by Chris Ford | November 7, 2007 3:54 PM

I'd like to see a couple of new amendments:

1. Repeal the War Powers Act and only allow military engagements over six months with a declaration of war from Congress.

2. Make signing statements illegal.

3. State that the Vice President is a member of the Executive Branch only.

Posted by croatoan | November 7, 2007 3:55 PM

Mr. Hack --

Of course the 2d Amendment doesn't say anything about nerve gas. (And who cares what the NRA says?) Nor does the 2d Amendment say anything about rifles, pistols, assault rifles, etc.

It says "the right to bear arms" (not guns). Why is nerve gas not an "arm", in the sense of the term used in the amendment?

The most plausible interpretation of the word "arms" (putting aside what interpretation leads to outcomes we might like) is just any and all kids of weaponry, isn't it?

Posted by JWR | November 7, 2007 3:56 PM

4. Wars should be paid for in the federal budget, not as emergency supplements year after year after year after year.

Posted by croatoan | November 7, 2007 3:59 PM

" (excepting some very specific provisions, like say the 11th amendment or the requirement that the president must be 35 and a natural born citizen) "

I believe that provision bars those born via cesarean section from becomming president - see MacDuff v. MacBeth c. 1057.

Posted by Njorl | November 7, 2007 4:01 PM

"Meanwhile, had the US Constitution not been written by a small and unrepresentative minority of wealthy individuals working in the 18th century, it's possible that it would do something like guarantee a right to health care."

I am sure some readers rolled their eyes at this hypothetical, but it is not all that far-fetched.

In fact, the fashion for writing provisions in State constitutions guaranteeing free public education began in the Revolutionary era.

Health care in the 18th century was so technologically limited that it would not have made much sense, though.

North Carolina, the only Southern State with such a Revolutionary era provision, did, in fact, see the provision ignored or tortured by reactionaries for decades afterwards.

Posted by Bruce Wilder | November 7, 2007 4:12 PM

The Constitution has become a bit clunky. To me, the largest structural problem is that since the Civil War, and particularly since the New Deal, the federal government has greatly expanded its reach, while the institutional framework has remained one designed for a government of fairly limited powers. Said differently, it may make sense to give equal representation in the Senate to California and Alaska if the federal government has only limited responsibilities, but it makes little sense to do so if we expect the federal government to have broad responsibilities.

The easiest way to fix these structural issues would probably be via convention. But everyone is sufficiently nervous about what such a convention would do that I doubt we'll see one. Instead we'll probably continue to limp along with a government that was designed to do relatively little being expected to do a lot.

Posted by henry evans | November 7, 2007 4:13 PM

"The most plausible interpretation of the word "arms" ...is just any and all kids of weaponry, isn't it?"

The logical interpretation in the most general sense is indeed that any form of weapon should be allowed. However, the usual interpretation is that arms refers to personal firearms of the sort likely to be possessed by individual members of the "militia" - which refers to any able-bodied male, basically.

In other words, personal firearms - not crew-served weapons, not nukes, not B-52 bombers, tanks, or the rest of the nonsense that the anti-gun people invoke.

The point of mentioning the NRA is that few members of the NRA are interested in or concerned about prohibitions on nukes, nerve gas or biological weapons. They are interested in and concerned about prohibition on personal self-defense firearms (which, yes, can include automatic weapons up to and including, let's say, an M-60 light machine gun - although that is close to being a crew-served weapon.)

It is the anti-gun crowd who come up with this bullshit that allowing personal firearms means allowing nukes.

The bottom line of the Second Amendment, as Patrick Henry put it, is "that every man be armed." The purpose was to insure the ability of the society to resist a tyrannical government. The existence of nukes, jet fighters, Abram tanks, or anything else of that sort is not relevant to the continued validity of that necessity.

Personal firearms wielded by motivated individuals are still the bottom line of any and every war, as Iraq as established yet again. When a nation has personal firearms, it can acquire any other weapons it needs to defeat any army from that army itself. This is basic guerrilla war. I recall a conflict many years ago, I think it was Cyprus, which started out with a few men with hunting shotguns. It quickly escalated to more effective weapons taken from their enemies.

Jet fighters don't fly so well when their pilots are shot in the head on the ground.

Posted by Richard Steven Hack | November 7, 2007 4:15 PM

The argument usually used to constitutionally ban nuclear weapons from private ownership is that they are not arms, they are ordnance. Generally, the definitions then get manipulated so that everything proponents want to have is "arms", but everything they are afraid of their neighbors having is "ordnance".

Looking at the justification for the 2nd, it is clear that investing the citizens with the capacity to resist the federal armed forces was part of its intent. It is therefore certain that fighter jets and tanks are part of the "arms" we're allowed to have. That is, of course, insane.

It may very well be true that allowing anyone who wants one to have a pistol, a shotgun, a rifle or maybe even an assault rifle is a good idea, but that isn't what the second amendment does. It guarantees your right to own 1000 surface to air missiles. Technology rendered the amendment nonsensical. While our Constitution is capable of dealing with the situation, it is not forced to deal with it. It allows us to limp along under the delusion that the amendment says something useful.

Posted by Njorl | November 7, 2007 4:31 PM

The logical interpretation in the most general sense is indeed that any form of weapon should be allowed. However, the usual interpretation is that arms refers to personal firearms of the sort likely to be possessed by individual members of the "militia" - which refers to any able-bodied male, basically.

Matt's post was about whether, in interpreting the constitution, we should consider whether we like the results. He says yes, Tim seems to say no, and you scoff at Matt.

With that in mind, you seem to concede Matt's point that just applying the 2d Amendment literally (and without regard to the results) means individuals get to possess all kids of weaponry.

As for the "usual interpretation," that looks like an interpretation that results from asking "How can we interpret the 2d Amendment in a way that leads to a sensible result, i.e. a result we think is normatively attractive?" There's nothing in the 2d Amendment itself that suggests it should be so limited. So we have to ignore (distort, torture, whatever) the plain meaning of the amendment to acheive a reasonable desireable result. Fine by me, fine by Matt, and (apparently) fine by the NRA.

The point is that you're interpreting the very broad language of the 2d Amendment in light of (reasonable) policy concerns, to reach a result that is very different than if you just tried to interpret it without those pragmatic concerns.

Posted by JWR | November 7, 2007 4:34 PM

"When a nation has personal firearms, it can acquire any other weapons it needs to defeat any army from that army itself. "

No, it can't.

A professional, well trained and armed military can be annoyed, stalled or even embarrased by partisans with small arms, but they do not get defeated. They fight as long as they want to. Successful guerilla armies are usually supplied by foreign countries with missiles, land mines and even light artillery.

Posted by Njorl | November 7, 2007 4:42 PM

I'm all in favor of a right to privacy. Can you get from there to a Constitutionally protected right just by invoking the 9th Amendment? No, I don't think so.

Well, why the heck not? Is "I don't think so" what passes for legal analysis in your circles? Just like Bork calling the 9th Amendment "an inkblot on the Constitution," you don't like its implications, so you want to ignore it.

The drafters of the Constituion were familiar with, and strongly aproved of, the English Common Law system, under which courts derive law from general principles on a case-by-case basis. The drafters deliberately employed broad, general terms in the expectation that their precise meaning would be worked out over time, as issues arose.

In particular, the drafters did not create an ocean of government power populated by a few islands of right; rather, they recognized an ocean of rights populated by islands of government powers. Modern-day authoritarians who protest that there is no mention of a right to privacy in the Constitution are missing the whole point of that document.

And of course it is antidemocratic that the power of the majority can be restricted by courts declaring the law--we don't live in a democracy after all--we live in a constitutional republic.

Posted by rea | November 7, 2007 4:45 PM

Why do conservatives always ignore the "well-regulated Militia" part of the Second Amendment?

Posted by croatoan | November 7, 2007 3:52 PM

================================================

They don't. They merely point out that at the time it was written the "militia" consisted of all able-bodied adult male citizens.

Posted by Campesino | November 7, 2007 4:48 PM

In particular, the drafters did not create an ocean of government power populated by a few islands of right; rather, they recognized an ocean of rights populated by islands of government powers. Modern-day authoritarians who protest that there is no mention of a right to privacy in the Constitution are missing the whole point of that document.

And of course it is antidemocratic that the power of the majority can be restricted by courts declaring the law--we don't live in a democracy after all--we live in a constitutional republic.

Posted by rea | November 7, 2007 4:45 PM

=================================================

Hear, hear!

Posted by Campesino | November 7, 2007 4:50 PM

"To me, the largest structural problem is that since the Civil War, and particularly since the New Deal, the federal government has greatly expanded its reach, while the institutional framework has remained one designed for a government of fairly limited powers. Said differently, it may make sense to give equal representation in the Senate to California and Alaska if the federal government has only limited responsibilities, but it makes little sense to do so if we expect the federal government to have broad responsibilities."

Posted by henry evans | November 7, 2007 4:13 PM

Excellent point and it highlights the biggest mistake we have made to the Constitution, which is the 17th Amendment.

The change of having Senators elected by the people instead of chosen by state legislatures was the biggest reason for the unwelcomed growth in the scope of and powers exercised by the Federal Government since the New Deal. The Senate was designed to be the states check on the federal government. Because Senators were beholden to state legislatures, it is unlikely that they would have allowed the Federal government or its agencies to accumulate power over the state.

Once Senators were chosen by the people, the concerns of the states and state governments no longer mattered to Senators and the power grab by the Feds became a fait accompli.

Another solution from the Progressive Era that only matters worse in the end. It's high time to repeal the 17th Amendment and restore the Senate to the role it was intended to have by the Founders as the States' check on the Federal Government.

Posted by Chicounsel | November 7, 2007 4:53 PM

Personal firearms wielded by motivated individuals are still the bottom line of any and every war, as Iraq as established yet again. When a nation has personal firearms, it can acquire any other weapons it needs to defeat any army from that army itself. This is basic guerrilla war. I recall a conflict many years ago, I think it was Cyprus, which started out with a few men with hunting shotguns.
=================================================

I just read an excellent example of this from the American Revolution in David Hackett Fischer's "Washington's Crossing".

In December 1776, the British in New York made the decision to garrison their Hessian and British units in small towns through New Jersey. Under the then current European "rules of war" any abandoned property was fair game for war booty (Hey look, nobody's home!). The Hessians in particular took this as a green light to take just about everything that wasn't nailed down.

New Jersey residents were so outraged by this behavior that a spontaneous rebellion broke out around the garrisoned towns. Informal groups of citizens got together using their personal hunting arms and continually sniped and harrassed the British & Hessian troops. Any small groups of troops leaving town were attacked. It got so bad that couriers going from post to post had to have platoon sized escorts to keep from being ambushed. This was not organized, supported, or directed by either the state or Continental government.

People kept passing on fake "rumors" of attacks on to the British & Hessians so they were in a continual state of alert. Hessian letters and diaries say that they were under arms at all times and pulled long sessions of guard duty. By the time Washington's army crossed the Delaware and attacked Trenton and Princeton they were worn to a frazzle and unable to mount an effective resistance.

Posted by Campesino | November 7, 2007 5:13 PM

In the good old days when we actually had a militia, you could be required (not merely permitted) to procure at your own expense a weapon suitable for military use, required to allow government agents into your home to inspect it, and required to train with it on a regular basis. Not to mention you could be required actually to go out on short notice and do what militias are supposed to do -- shoot at folks and run the risk of getting shot at. This actually sounds like a pretty good deal to me, since one of my minor obsessions is the politically skewed distribution of ability to engage in effective organized violence in contemporary America, but I'm not sure that most of the folks who think of themselves as 2d Amendment advocates would like it.

Posted by CJColucci | November 7, 2007 5:37 PM

The right to privacy in the U.S. Constitution is fairly clear.

The Framers spoke of "the right of the people to be secure in their persons, houses, papers, and effects." The Fourth Amendment doesn't specifically use the phrase "right to privacy," but so what? The Bill of Rights doesn't explicitly use the phrase "fair trial," but no one would question that this is a right guaranteed by Amendments 5, 6, and 8. Furthermore, the Ninth Amendment specifically states that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," which pretty much discredits Sullivan's argument.

William Brennan did a poor job of writing the decision on privacy; his reference to "penumbras" and "emanations" was easily mocked. But the basic principle is much simpler: the right to privacy is guaranteed by the 4th and 9th Amendments.

Posted by Josh G. | November 7, 2007 5:41 PM

They merely point out that at the time it was written the "militia" consisted of all able-bodied adult male citizens.

so neither a one-legged man nor his wife should be able to buy a gun ?

of course they can.

when and where was this changed?

Posted by cleek | November 7, 2007 5:46 PM

In the good old days when we actually had a militia, you could be required (not merely permitted) to procure at your own expense a weapon suitable for military use, required to allow government agents into your home to inspect it, and required to train with it on a regular basis. Not to mention you could be required actually to go out on short notice and do what militias are supposed to do -- shoot at folks and run the risk of getting shot at. This actually sounds like a pretty good deal to me, since one of my minor obsessions is the politically skewed distribution of ability to engage in effective organized violence in contemporary America, but I'm not sure that most of the folks who think of themselves as 2d Amendment advocates would like it.

Posted by CJColucci | November 7, 2007 5:37 PM
=================================================

Works well in Switzerland

Posted by Campesino | November 7, 2007 6:00 PM

No, the Constitution is not difficult to amend. It's not being amended anymore because, thanks to a cooperative Court, violating it is even easier.

Seriously, if Congress or the President want a new power that the Constitution doesn't grant them, they just go ahead and claim it, and 99 times out of 100 the Supreme court rolls over, and lets them do it. (That's the functional implication of Matt's approach to having a Constitution, but not actually, like, enforcing it.) Under those circumstances, what need do Congress and the President have for amendments?

Indeed, the situation is worse than that: The last time the states ratified an amendment, (Regulating Congressional pay.) that Congress didn't approve of, the Court deliberately interpreted it so as to render it void.

Since Congress does not need amendments to expand it's power, the only purpose amendments can actually serve is to curtail Congress's power. Since Congress has no interest in curtailing it's own power, it does not originate such amendments, and so they don't happen.

But this is not because amendments are too "difficult". It's because violations are too easy.

Anyway, I'm glad Matt has decided to be honest about his contempt for the rule of law, and constitutionally limited government. If only more people were, instead of pretending all this "interpreting" was really an honest effort to implement a constitution they don't like, we might have some productive debates.

Posted by Brett Bellmore | November 7, 2007 6:17 PM

As far as the Second Amendment goes--nobody has every proposed a comprehensive ban on firearms in this country. And the amendment says right there--"well-regulated," which would see to imply that firearms can be, well, regulated . . .

Anybody think that a member of a military unit under discipline could not be legitimitely ordered, "Don't carry your gun while off duty"?

Posted by rea | November 7, 2007 6:24 PM

"nobody has every proposed a comprehensive ban on firearms in this country."

BS with a cherry on top. You'll find a list of such quotes from public figures here:

http://www.guncite.com/

And much else besides relevant to this debate.

Yes, it says that it's the militia that's well regulated. Right before it says that the right of the people shall not be infringed. The 2nd amendment does not empower the government to regulate gun ownership, it makes clear that the power to regulate the militia is NOT the power to disarm the people.

Posted by Brett Bellmore | November 7, 2007 6:34 PM

But leaving that aside, I suppose it does take some torturing of the Second Amendment's text to explain why the "right to keep and bear arms" doesn't guarantee people's right to keep and bear, say, weaponized forms of the VX nerve agent but I'd rather offer a tortured reading of the amendment than have deadly neurotoxins sold at the corner store.

It is always dumb to use the 2nd Amendment as an example in these types of discussions, becuase you always end up with threads like these. It is much better to make your point with the 1st Amendment, which states that Congress shall make no law "abridging the freedom of speech". And yet Congress has made laws abridging the right to lie in court under oath (perjury), the right of prosecutors and grand jurors to disclose what happened in grand jury proceedings, the right to disclose the names of certain covert CIA agents under certain circumstances (the IIPA), the right to shout fire in a crowded theater, the right to slander and libel other people, and so on. And yet we didn't amend the Constitution to allow any of those things, notwithstanding the text of the 1st Amendment which would seem to prevent Congress from making those laws.

Posted by Al | November 7, 2007 6:37 PM

. . . notwithstanding the text of the 1st Amendment which would seem to prevent Congress from making those laws.

Uh, no. "As this Court has previously observed, the First Amendment was not originally understood to permit all sorts of speech; instead, '[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.'" Thomas, J., concurring in Morse v. Fredrick.

Posted by UN Plaza | November 7, 2007 6:49 PM

The real problem is simply that the constitution is too hard to amend

One could just as easily say that when a woman gets raped, it is her fault because she didn't consent readily enough.

Posted by Glaivester | November 7, 2007 7:18 PM

"It is always dumb to use the 2nd Amendment as an example in these types of discussions, becuase you always end up with threads like these."

Well, of course you do. That's because of the 2nd amendment's special status as the one civil liberty self-described 'civil libertarians' are most frequently interested in violating. It puts the internal contradictions of the civil liberties movement under the greatest strain.

Posted by Brett Bellmore | November 7, 2007 7:25 PM

That's because of the 2nd amendment's special status as the one civil liberty self-described 'civil libertarians' are most frequently interested in violating.

Maybe, or it could more simply be because of the 2nd Amendment's special status as the one with the least amount of explication by the Supreme Court, whether textual, historical, or what have you. Plus the ambiguous text and the special emotional resonance that guns seem to draw out of people, be they self-styled liberals, conservatives, or libertarians.

Posted by UN Plaza | November 7, 2007 7:35 PM

"Maybe, or it could more simply be because of the 2nd Amendment's special status as the one with the least amount of explication by the Supreme Court"

LOL! Now, there you go, confusing cause and effect. There's the least case law on the 2nd amendment of any of our civil liberties, except perhaps the 3rd, because the Supreme court has spent nearly 70 years refusing to take any case where the 2nd amendment was at issue. And they've been doing that, not for a lack of good vehicles, or ripeness, (The issue is practically rotten at this point.) but because they were exactly the sort of 'civil libertarians' I spoke of, content to let the lower courts do the dirty work of dealing out the death of a thousand cuts for an amendment they don't like.

If they take the Heller case, (We'll know in a few days.) it will only be because in THIS case, inaction means upholding the 2nd amendment, rather than rendering it a bit more of a dead letter.

Posted by Brett Bellmore | November 7, 2007 8:02 PM

Basically everyone who looked at it agreed on the 2nd Amendment being limited by the militias clause until recent tortured pro-gun interpretations. The interpretation has had nothing to do with liking or not liking gun ownership.

P.S. If you think machine guns are going to allow you to fight a tyrannical gov't...

Posted by bob | November 7, 2007 8:19 PM

Can you get from there to a Constitutionally protected right just by invoking the 9th Amendment? No, I don't think so.

Yes. The Bill of Rights is not a list of rights granted by the government to the people, it's a list of the rights the Founders felt needed the most explicit protection. The assumption is that you have a right if it's not listed, not that you don't.

James Madison:

It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. ... The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people.

Posted by croatoan | November 7, 2007 8:58 PM

"Basically everyone who looked at it agreed on the 2nd Amendment being limited by the militias clause until recent tortured pro-gun interpretations."

Riiiight. I suggest you have a little chat with Lawrence Tribe, or at least look up what he's had to say on the topic. He was of your persuasion, too, until, in preparation for writing what was to be the definitive refutation of the individual rights interpretation, he finally bothered to do the research, and found to his embarrassment that all the evidence was in it's favor.

Look, Bob, you're defending an interpretation of the 2nd amendment which has been conclusively demonstrated to be a 20th century fabrication of the gun control movement. It's historical revisionism at it's most blatant.

Posted by Brett Bellmore | November 7, 2007 9:31 PM

Re: Meanwhile, had the US Constitution not been written by a small and unrepresentative minority of wealthy individuals working in the 18th century, it's possible that it would do something like guarantee a right to health care.

Given the state of healthcare in 1789 I very much doubt it. Back then you were probably better off not seeing a doctor and relying on Aunt Abigail's home remedies. Remember, George Washington had a bad cold-- and was bled to death by his physician.

Re; The real problem is simply that the constitution is too hard to amend so that when provisions become outdated or unworkable or produces ludicrous results

Maybe, but I'd rather have it hard to tamper with than have some panic-driven illiberal majority decide to curtail basic rights someday. I like the fact that Religious Right doesn't have a snowball's chance in hell of getting an FMA or a Human Life Amendment in the document. And just about everything that I want to see done can (and should) be done by simple legislation instead.

Re: see for example what happens if there's no majority in the electoral college, a lurking time-bomb that's bound to go off one of these days)

Huh? The election is decided in the house of Representatives (and didn't this happen once?) Where's the "time bomb"? IMO, that's a bit more democratic a resolution than having the Supreme Court elect the next president.

Re: If they didn't think of it (and, you know, nerve gas would probably fall int his category), then it's not a constitutionally-protected "arm."
And, yes, I am being snarky.)

Maybe you're being snarky, but the Originalists use exactly that argument on just about everything else. The Founders supported sodomy laws? Ok, those must be constitutional. They thought hanging, drawing and quartering were not "cruel and unusual"? Ok, that's fine today too. States could have established churches-- OK, Utah, you're free to become a Mormon theocracy, and Alabama a Baptist one.

Re: The last real substantive Amendment (1962) was elimination of the Poll Tax meant to keep parasites and welfare people away from voting so as to prevent them from raising taxes on the the people, who, unlike them, paid taxes.

You know damn well the point was to prevent the South from imposing discrminatory taxes on Blacks to keep them from voting and that you would dispute such a measure brands you a racist in the best old Lester Maddox tradition. And by the way, universal (white male) suffrage regardless of wealth or income began to be enacted in the US almost as soon as the ink on the Constitution was dry (Vermont was the first state to do this back in 1790 something). So the idea that the poor should have equal political rights is not exactly some new-fangled wild-eyed leftist idea.

Re: The most plausible interpretation of the word "arms" (putting aside what interpretation leads to outcomes we might like) is just any and all kids of weaponry, isn't it?

But if you accept "originalism" why should it mean anything other than what it meant in 1789? Should we shoehorn modern meanings into this word?

Posted by Jonf | November 7, 2007 9:33 PM

As an occasional pot smoker I've always been irked that the first time a drug was prohibited it took a constitutional amendment, but now they can ban a drug without even requiring a law. In fact, the supreme court decided that the feds had the power to override states' legalization of marijuana.

What changed after the 1920s to make everyone decide they can ignore the 9th amendment?

Posted by miguel | November 7, 2007 10:04 PM

"Re: The most plausible interpretation of the word "arms" (putting aside what interpretation leads to outcomes we might like) is just any and all kids of weaponry, isn't it?

But if you accept "originalism" why should it mean anything other than what it meant in 1789? Should we shoehorn modern meanings into this word?"

If that were the most plausible interpretation, they'd have just written "weapons". "Arms" had a particular, established meaning in this context: Those weapons which would be carried by the ordinary soldier.

Makes perfect sense: The right of the people to keep and bear the weapons a soldier is expected to carry shall not be infringed. Since a militia is drawn from the general citizenry, who are expected to show up already appropriately armed, protecting the right of that citizenry to the arms they're expected to show up with, already knowing how to use clearly contributes to that militia.

The general meaning of the term "arms" remains constant, it's specific content being determined by what Congress expects the average soldier to be carrying.

I do hope Congress has the sense not to direct every grunt straight out of boot camp be equipped with a suitcase nuke...

Posted by Brett Bellmore | November 7, 2007 10:05 PM

"Why do conservatives always ignore the "well-regulated Militia" part of the Second Amendment?"

Because the term "militia" refers to every able-bodied man in the country, that's why. That is totally clear from the original writings of the Founders.

"Well-regulated" means they are under the command of their states as needed and also means that since they have arms, they can presumably be trained to shoot straight.

"A professional, well trained and armed military can be annoyed, stalled or even embarrased by partisans with small arms, but they do not get defeated. They fight as long as they want to. Successful guerilla armies are usually supplied by foreign countries with missiles, land mines and even light artillery."

I see - so in other words, one million Americans using small arms - and as I said, acquiring missiles, land mines and light artillery by using said small arms with the appropriate tactics - cannot defeat any modern military.

You're an idiot.

Even if your concept were true - and there is no evidence that it is - it still would not change the point that the Founders intended that to be the basic defense of the country against tyranny.

So all you're saying is that, today, tyranny is easy. And so you want to make it easier by disarming everybody.

It is true that finding one million Americans willing to use firearms to fight for their freedom is about as unlikely in this nation of gutless punks as finding any rational enough to understand the point of the Second Amendment.

Posted by Richard Steven Hack | November 7, 2007 11:34 PM

"There's nothing in the 2d Amendment itself that suggests it should be so limited. So we have to ignore (distort, torture, whatever) the plain meaning of the amendment to acheive a reasonable desireable result. Fine by me, fine by Matt, and (apparently) fine by the NRA."

Not exactly. While it is not correct to distort or torture an amendment, there is clearly precedent for historical analysis of the purpose and intent of the writers of the amendment.

"The point is that you're interpreting the very broad language of the 2d Amendment in light of (reasonable) policy concerns, to reach a result that is very different than if you just tried to interpret it without those pragmatic concerns."

Yes - and there is nothing wrong with that. Where it goes wrong is when the basic concept of the amendment is interpreted in a way clearly contrary to the intent of the Founders - as not only represented in the amendment itself, but also in the historical commentary by the Founders surrounding the amendment - and then used to deny the basic soundness of the amendment's concept.

In other words, it's when people start bullshitting in an attempt to remove a civil right because they think some issue today is more important than that right that we have a problem.

It is not relevant whether the Founders if living today would be impressed with technological advances in military matters. It also is irrelevant as to whether they would react by suggesting that ordinary people actually do possess heavy weapons or not.

What is relevant is that they believed that an armed citizenry - however armed - is better than a defenseless citizenry - however threatened by a modern military.

And as I have pointed out, what matters is the attitude of that citizenry.

Quite frankly, in the end, it doesn't matter. There is no way to disarm the US population. Anybody who doesn't want to give up their weapons won't. There are an estimated 70-170 million weapons in this country.

Some years back they tried to finally ban all automatic weapons. Approximately a hundred thousand such weapons had been registered with the Treasury. So they allowed a one year grace period for any unregistered weapons to be registered. During that year ANOTHER hundred thousand weapons were registered.

Which means there are at least ANOTHER hundred thousand automatic weapons out there that will NEVER be registered.

Feel free to try to take them.

Start a new massive black market in firearms to go with the massive black market in drugs that Federal laws have been so effective at removing.

Go head. Feel free.

I love knowing that when it is done, I will be able to go to practically any street corner and buy any weapon I want with no registration hassles.

Morons.

Posted by Richard Steven Hack | November 7, 2007 11:45 PM

Because the term "militia" refers to every able-bodied man in the country, that's why.

again, women and one-legged men: what gives the 'right' to buy guns ?

Posted by cleek | November 8, 2007 8:19 AM

"[L]iberals ... are 'perfectly willing to countenance tortured readings of the First Amendment in the name of 'campaign finance reform.'"

Gotta love libertarians who argue that giving campaign contributions is "speech" under the First Amendment. Talk about tortured readings of the Constitution.

I can talk about legalizing marijuana all I want, because the First Amendment protects speech. If I try to show my support for repealing marijuana laws by buying marijuana, however, I will be arrested. Why? Because giving money to someone is not speech. Even if my "donation" is made for expressive, political purposes.

But that's a purchase, you say. It's different because you're paying for something tangible!

Fair enough. Here's another example:

Fred Phelps can go to soldiers' funerals and sing the praises of al Qaida suicide bombings because the First Amendment protects speech. The moment Fred Phelps attempts to give money to al Qaida, he will be arrested for giving material support to a terrorist organization. Why is the former act protected and the latter not? Because giving money to someone or something is not speech.

Note that in this scenario, Phelps would be giving money based solely on al Qaida's politics. There is no commerce involved. And yet there is no question that Phelps would be subject to prosecution.

Posted by owenz | November 8, 2007 9:25 AM

"You're an idiot. "

No Richard. I am not an idiot. I can safely assure you, from reading your writings here, that I am far more intelligent than you. I'd wager that most people you meet are more intelligent than you, though that might not be a safe bet, as intelligent people probably try to avoid you.

All successful guerilla movements are aided by outside forces, or spearheaded by remnants of genuine, professional militaries. Citizens with guns never win. They make nice stories, but they usually leave out the important details.

The reason the American citizenry would prevail over the American military is that large numbers soldiers, even up into the high ranking officers, would not fight against the people and would likely join them. If this did not occur(a fantasy scenario despite our nearly fascist president), we'd be every bit as screwed as the citizens of any other country, despite our hunting rifles, shotguns and 9mm automatics.

Posted by Njorl | November 8, 2007 10:58 AM

Uh, no. "As this Court has previously observed, the First Amendment was not originally understood to permit all sorts of speech; instead, '[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.'" Thomas, J., concurring in Morse v. Fredrick.

That's exactly my point. The First Amendment was never about permitting every type of speech, despite the absoluteness of the words "Congress shall make no law". Similarly, the Second Amendment was never about permitting every type of weapon up to and including VX gas, despite the absoluteness of the wording of the amendment ("the right of the people to keep and bear arms shall not be infringed"). But of course to say that the Second Amendment was never about permitting VX gas (despite the wording of the amendment) doesn't mean that the Amendment is a nullity, any more than saying that the First Amendment doesn't permit libel and slander doesn't mean that the First Amendment is a nullity.

Posted by Al | November 8, 2007 11:10 AM

Actually, I think a right to privacy, and for that matter a right to own a gun and to have an abortion, are implicit in the Constitution and are captured by the 9th Amendment admonition that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. Of course, the 9th Amendment has been read out of the Constitution for some fucking reason, and hence we are left with "penumbras" and such shit to justify what ought to be obvious-- you have jurisdiction over yourself.

Posted by Jeff in Texas | November 8, 2007 11:20 AM

But of course to say that the Second Amendment was never about permitting VX gas (despite the wording of the amendment) doesn't mean that the Amendment is a nullity, any more than saying that the First Amendment doesn't permit libel and slander doesn't mean that the First Amendment is a nullity.

Very true, Al.

I'm ambivalent about gun control laws, but I don't see why an individual rights reading of the Second Amendment would gut them.

As I wrote above, though, I don't see how the first half of the Second Amendment can be regarded as entirely without legal meaning, especially in the context of the Bill of Rights.

If I were a gun person, I'd be concerned with amending the Constitution to remove that part of the amendment.

Posted by Elvis Elvisberg | November 8, 2007 11:23 AM

Al,
I think your argument is fine for disposing of the VX gas gambit, but what about other items? What about shoulder launched missliles, anti-tank mines or even simple anti-personell explosives. All of these things could be carried by a soldier. All of these things would be considered essential to deter a foreign or domestic professional army from oppressing the citizenry.

Posted by Njorl | November 8, 2007 12:37 PM

"again, women and one-legged men: what gives the 'right' to buy guns ?"

Again, the fact that it's a right of the People, not of the militia. Women and one-legged men ARE people, aren't they?

Njorl, those things can be carried by a soldier, but so can backpack nukes. The real question is, would you consider a soldier incompletely equipped if they showed up for muster without a shoulder launched anti-tank missile? No, you would not. If they showed up without a rifle, sidearm, and knife, on the other hand...

The purpose of the amendment, as numerous contemporary sources agree, is to assure that law abiding citizens can not be denied ownership of the sort of weapons they'd be expected to appear with, and know how to use, if a militia was raised. Which means, essentially, that Congress defines the relevant weapons by how it arms it's troops.

Posted by Brett Bellmore | November 8, 2007 6:47 PM

it's a right of the People, not of the militia

So it's your position that the prefatory clause is irrelevant surplusage?

Posted by UN Plaza | November 8, 2007 7:00 PM

What's a militia, though? Certainly not the National Guard; that's essentially a standing army. About all I can take away from the first clause is that it's OK to take the right to bear arms away from criminals, and maybe that regulations that don't infringe on the basic right are OK.

Posted by AlanC9 | November 9, 2007 2:31 AM

"Njorl, those things can be carried by a soldier, but so can backpack nukes. The real question is, would you consider a soldier incompletely equipped if they showed up for muster without a shoulder launched anti-tank missile? No, you would not. If they showed up without a rifle, sidearm, and knife, on the other hand..."

While I wouldn't consider an individual soldier incompletely equipped without those items, I would consider a fighting force to be so. A unit that can't contend with armored vehicles is not properly equipped.

Sidearms, on the otherhand, are not necessary. For most of the 20th century, our army agreed. Only fairly recently have sidearms become standard issue. So, I think the second amendment would be more likely to allow anti-tank mines than pistols.

Posted by Njorl | November 9, 2007 10:14 AM